Thursday, 24 September 2015

Well, they’re gone now and I am left wondering if that was the right thing to do. It didn’t take much. I finally asked the right question of the internet, and found a phone number. The lovely Miss Janee made the call, they were happy to be of service and today they came to the house and took them all away.

My record albums.

I decided I needed a very clean, very surgical incision. So I didn’t even bother to count them exactly. 200. 250. 300. Maybe more, if you include the 45s, like my copy of Tom Northcott’s 'Sunny Goodge Street', autographed by the artist. And the Rolling Stones' 'Dandelion'. And Neil Young’s 'Sugar Mountain'. And weirder and still weirder, Kenny O'Dell’s 'Springfield Plane'. Who the heck was Kenny O'Dell? All I remember is that line, Springfield plane is going to carry me back to my baby’

For a brief moment on Sunday afternoon, as the rain fell, and we cleared stuff out of the attic, I thought I would open the boxes and take a look. I thought I knew what I would find. The soundtrack of my youth, of course. Sgt. Pepper's Lonely Hearts Club Band. Bookends. After the Goldrush. Sweet Baby James. For Everyman. Bringing It All Back Home. Records every note of which is laid down in the basic wiring of my brain. I was twelve or thirteen or twenty three, and I had vast caverns of mindspace waiting to be filled with music. She’s got everything she needs she’s an artist she don’t look back. Sailing heartships through broken harbours, out on the waves in the night. Sunny skies sleeps in the morning. When I think back on all the crap I learned in high school.Ribbon of darkness over me.

I always think that everyone of my generation knows all these tunes and words and am surprised when they don’t.

But anyway I had to stop looking because what I quickly discovered was not what I remembered but what I had forgotten. David Essig. Whoa boy could he play. Early Leo Kottke. Bruce Cockburn’s In the Falling Dark, and the hours I spent learning to play 'Festival of Friends' in the winter of 1976-77. David Lindley’s El Rayo-X, an absolutely spectacular record whose tracks jumped out of the speakers like wild animals. Keith Jarrett’s Staircase: I was never sure if it was the music or the album cover photographs. The Pousette Dart Band - I saw them play once in Harvard Square I think. Donovan’s A Gift from a Flower to a Garden. Well, I had not forgotten that; it’s just that seeing it in my hands again sent me somewhere quite else.

Running my fingers through my past I had to stop. I decided that I could not do this one at a time. Or I would not do it at all. These boxes have sat in the attic, the records inside them unplayed, for years now, and, thinking rationally, I am not going to take a trip back into vinyl time and rediscover the justifiably neglected tracks on the early Byrds‘ albums, or the strange moody indulgences of Emerson Lake and Palmer.

Time just to get rid of it all, and take my chances with the digital music archivists of the internet. So today, while I was at work, the folks came and took the boxes away. No fuss no muss - one more step along the road to a clutterfree world.

But right now I am thinking of those hours - days, really, weeks, even years, maybe - I spent listening to all those records and wondering whether I have just given away something I might someday wish I hadn’t forgotten to remember. Or something like that. I don’t want them back. I just don’t quite want them gone, either.

Wednesday, 9 September 2015

The BC Business Council invited me to speak at a networking event they hosted in Vancouver last night on the eve of the annual BC Cabinet and First Nations Leaders' Gathering. It was a privilege to have an opportunity to speak to a room of Cabinet ministers and their deputies, First Nations and business leaders and to reflect on how to make greater progress in turning the promise of economic and social reconciliation into reality in the aftermath of the Supreme Court of Canada's 2014 landmark decision in Tsilhqot'in.

Here is the text of my remarks, more or less as delivered.

1

Let me
first thank the BC Business Council for its leadership in convening this
important gathering. What the business community is signaling here is its
recognition both of the importance of reconciliation, and the role that
business must play in turning the promise of reconciliation into reality.

This is
an important gathering, you know.

Just
imagine, for a moment, what might get done here, starting tonight, and over the
next few days.

Meaningful
progress in creating tangible opportunities for economic and social
development, founded on mutual recognition and respect.

You are
here because you are leaders, because you sought out leadership and because
your communities chose you as leaders.So make this an occasion for leadership. Not for standing still, not for
looking for short cuts to nowhere, not for dressing up the status quo as
something new, but an occasion for stepping outside your comfort zone, for
exploring new ideas, for taking risks. For courage.

I know
this is much easier to say than do. I’ve been in politics. I’ve attended a
hundred meetings where my main objective was just to sit tight and wait until
it was all over.

I’ve
also experienced how hard it is to lead change. But really, that is why you are
here. To lead change. To make history.

So where
are we at?

14
months after the Supreme Court’s decision in Tsilhqot’in, there’s been no
shortage of discussion and analysis. People have tried to make sense of what
the decision means, and there have been calls for action.

14
months on, we continue to push out more agreements – and that is a good thing –
but overall, it’s hard to say we have found a clear path forward.

Let me
offer some observations intended to help get past reflection and into real
progress.

2

First,
let’s leave the lawyers at the door. They’re nice people, really, (after all, I am one) but we will
not establish reconciliation by relying on legal opinions about legal rights.

For a
long time, now, courts have helped level the playing field as between
non-indigenous and indigenous rights, but courts cannot put rights into
action.Even those who cannot see the
moral force of the argument for respect of indigenous rights must surely agree
that litigating the ownership of every hectare of British Columbia will not
build a prosperous society. There has to be a better way to do this.

Last
summer, in the aftermath of the Tsilhqot’in decision, First Nations sent a
letter to government proposing four principles.The principles were intended to inform new forms of relationships,
negotiations, and agreements with the Crown. The principles were simply that:
principles. You could say they were aspirational in their reach.But they were intended as a start for a new
conversation.

Ten
months later, Government’s letter of response carefully parses the principles
as though they were a legal contract, rather than a potential foundation for a
political discussion. With respect, a dialogue that entrenches old positions,
rather than empower fresh thinking, simply won’t help. This is not the time to
draw lines in the sand.It’s a time for
problem solving, not problem defining.

I’m not
suggesting we should pretend there are no differences. Of course there are
differences. But let’s all of us spend less time trying to win arguments, and
more time looking for mutually beneficial opportunities.

To put
this in another frame, for a long time this discourse has been characterized by
positional statements and demands. And for much of our province’s history it
was, perhaps, too tall an order for any party to shift that.

But
certainly now is the time for change.It’s time for an interest-based approach that promotes collaboration – which
again sounds easier than it really is, but it is an approach that definitely
holds more promise than the alternatives.What we need to focus on is how to deliberately, systematically, and
programmatically, create economic and social opportunity for everyone.Opportunity for the First Nations communities
on whose territories land and resource development takes place, and
opportunities for everyone else who deserves a share of the prosperity we can
create if we work together.

3

How
should we frame our engagement?

First, I
do not suggest we can or should overreach - we’re simply not going to get to
comprehensive reconciliation with one bold leap.

It may
not be possible to design, let alone implement, an over-arching framework which
is both meaningful and comprehensive enough to encompass all of the province’s
many First Nations.It may not even be
desirable to try, given the diversity of experience and perspective that lives
within our province.

There
has to be room for nuance and flexibility. We can get to reconciliation in many
ways, and as leaders you all have a critical role to play in shaping those
pathways. A policy which looks for wins – call it “strategic opportunism” - is
entirely respectable, not least because achieving some success somewhere helps
build confidence that other successes are possible. We need to acknowledge the
successes that have already been achieved in this way.

At the
same time, looking for wins should not be confused with “squeaky wheels always
get grease.” We need a proactive, rather than reactive approach.It’s not about waiting for opportunity, it’s
about looking for it. It can’t be just about putting out fires. We have some
wonderful firefighters in the room – from all parties – and we can all hope
that as leaders, these skilled individuals are given the opportunity to look
for opportunities, rather than simply respond to problems.

There is
a powerfully important need for frameworks, objectives and principles that
avoid the risks inherent in a continuous proliferation of isolated one-off
arrangements.Real progress is not
rooted in expedience.With a bit more
design work, there’s no reason we can’t establish a stronger foundation of shared,
understandable, acceptable, achievable expectations, based on mutual respect
and recognition, not denial and mistrust.

And then
there is this vexing question: how do we ensure that everyone benefits? If the
distribution of success is too lopsided, then it will breed its own
failure.I’m not discounting the reality
that forests, mines, gas wells and other resources are not evenly distributed
across the province. I am also not suggesting that all First Nations need or
want to benefit in exactly the same way – that approach ignores the reality of
so many diverse perspectives, interests and priorities. But it’s critical that
we design our policies to address the reality of uneven wealth
distribution.This will be particularly
challenging if negotiation becomes – as I hope it does not - an exercise in the
valuation of asserted rights and title.

There is
a need for greater transparency. Not only because our respective communities
need to know what is going on, if we are to hope that they will support this
work.But also because a growing public
record of best practices, will help demonstrate what kinds of arrangements are
more likely to succeed than others.Again, I am not suggesting that what is needed is strait-jacket
uniformity imposed through the back door.I’m just saying, keep the confidentiality clauses to a minimum, let’s talk
about what’s going on, and let’s keep track.

I’m not
trying to make this sound harder than it needs to be.But for all the successes that have been
achieved through many agreements and arrangements that have been entered into,
there’s a need to do much more to give full effect to the promise of
Tsilhqot’in.

This
work is not, at its heart, positional jousting to reduce costs and minimize the
distributional effects of rights and title.We cannot allow this to be a zero sum game of benefit re-redistribution.
It has to be about creating competitive advantage, of creating incremental
value. The question is can we really lead?Are we ready to lead in ways that are more enduring for our communities,
shareholders and families?

To be
fair, we are in an era where it often seems there is not a great deal of public
appetite for bold political leadership – in any of our respective
communities.But rather than be defeated
by cynicism, let’s choose to be inspired by the profound importance of the work
that lies before us.

I do
believe great things can happen if we are willing to recognize and affirm the
mutual legitimacy of our aspirations, and if we are able collectively to see
aboriginal people and their unique rights not as threats, not as the “other”,
but as part of the larger “us.” To recognize that justice for First Nations is
justice for all of us.

4

In
closing, you are here given an opportunity to direct the course of
history.I’m not afraid to put it in
such terms.There is no issue that so
taints the history of our country as the long legacy of our failure to respect
the rights, hopes and aspirations of Canada’s First Nations.This week’s meetings take place against the
backdrop of this history. One way or another you will be remembered for what
you do here. I say, choose to succeed.

By
coming together here as leaders, it’s your turn, your time, to take hold of the
paddles that sit in the great canoe which holds our collective hopes and
dreams.You can, if you want, keep your
paddles dry, and let the river take you where the river will. The river will
always take you somewhere.Onto the
rocks maybe, or stalled forever in some backwater.Or you can decide to sit up straight, put
your back into it, and paddle. You’ll get wet, maybe blisters, too.It’s going to be harder to find and hold the
course than you would like.But paddling
together - sensing the surge as the boat moves forward - it’s an amazing
feeling. It’s really the reason we’re here, after all. So try it. Paddle.

Tuesday, 8 September 2015

Here is a commentary I wrote in response to a BC Provincial Court consultation paper on open courts. It appeared in the Globe and Mail on September 8, 2015.

Not all that long ago, if you wanted to know what was happening in the courts you had two options: Rely on the media, or go to the courthouse and see for yourself. Nowadays, a great deal of court information is kept electronically and with little effort could be made readily available online to everyone.

How much of this information should be accessible is a question being asked in a consultation paper recently issued by B.C.’s Provincial Court. We should seize this opportunity to expand access to information, not further limit it.

As the discussion paper helpfully points out, the task is to strike the right balance among a number of important principles: The public’s right to transparency in the administration of justice, individual privacy rights, fairness and the presumption of innocence.

On the one hand, courts exercise tremendous power – most obviously, of course, in criminal cases, where judges can impose sanctions and penalties all the way up to life imprisonment. But all court cases are about the exercise of state power, even if it is only to obtain an order requiring the payment of a debt. As the Supreme Court of Canada recently said, the transparency that flows from public access to the courts “ensures that justice is rendered in a manner that is not arbitrary, but is in accordance with the rule of law.”

On the other hand, widespread publication of court information has obvious implications for personal privacy. Publicizing the details of a trial, even when the result is an acquittal, can sometimes cause as much stigma and shame as a conviction. Our innocence may be presumed, but it’s hard to remember that when we watch crime stories on the nightly news.

Over the past several years, government and the courts have done a great deal of work to digitize court information. Recording this information electronically has undoubtedly improved court administration. But along the way policy decisions have been made about public access to this information. The result is that public online access is refused to such information as convictions for which a pardon has been granted, absolute and conditional discharges (after some time has elapsed), stays, withdrawals, and acquittals or dismissal of charges.

The principle underlying these restrictions is the idea that someone who has not actually been convicted of a criminal offence has a right to privacy that is more important than the principle of open courts. I take a different view.

Finding the right balance for competing principles is rarely easy, but that balancing exercise is often the moment when we have a chance to see the difference between what we really value and what we simply say we value.

There are legitimate circumstances where publication of court information should be restricted. Examples include where public disclosure would seriously undermine the integrity of law enforcement or expose witnesses to the risk of serious harm. This is not just about protecting privacy, it’s something different and equally, if not more, important.

But fundamentally, we should nurture, not further erode, the principle of open courts.

When the state prosecutes someone for an offence it is essential to democratic accountability that this fact be public. We should know about it whether the person is convicted or acquitted, the charge is stayed or withdrawn, or there is a pardon, a peace bond, or whatever. All of it. We will not be able to ask the right questions about the exercise of power unless we know how and when it is being exercised.

The fact that information technology allows court information to be disseminated more widely is a good thing, not a bad thing. Understandably, a person who is acquitted of a crime wants the whole world to forget that he or she was ever charged, but truth doesn’t work that way. It is appalling that innocent people can be dragged through the hell of wrongful prosecution or imprisonment, but the right response is not to organize official records to close the door of public access to what happened, but rather to open those doors as wide as we possibly can. The truth may sometimes hurt, but we won’t learn how to prevent wrongs from occurring if we deny ourselves the opportunity to know what has happened.

It was easy to say that open courts are indispensable in free societies when the reality is that much of what the courts did was, as an Alberta judge once said, protected by the “practical obscurity created by the physical inconvenience of attending at each courthouse to examine the criminal dockets.” Now technology offers the opportunity to overcome that inconvenience and test our commitment to the principle of open courts. We should embrace that opportunity. The exercise of state power must be subject to public scrutiny. That’s our best protection against its misuse.

Thursday, 3 September 2015

Here is a piece the Globe and Mail published on July 15 - my response to the powerful exhibition of Sonny Assu's work at the Equinox Gallery in Vancouver.

At the centre of Sonny Assu’s recent exhibition at Vancouver’s Equinox Gallery were two school desks. School desks remind us of childhood, but these desks were different – and not just because of the way they had been altered by the artist. There was nothing nostalgic about them.

One, of 1930 vintage, was called Leila’s Desk. A box of Lifebuoy soap sat on the desktop, a reminder that on her first day of school a classmate called Mr. Assu’s grandmother a “dirty Indian.” The other, of 1990 vintage, was called Inherent and revealed the word “chug” on the underside, a piece of invective thrown at the artist by one of his classmates.

The exhibition was called Day School, a direct reference to Indian residential schools. Mr. Assu is from the We Wai Kai Nation, whose home is Cape Mudge on Vancouver Island. The desks were stark, tangible reminders that the residential school experience is not just something to read about in a report. It was, for years, the everyday reality for thousands of children in our country.

The exhibition coincided – unintentionally – with the release of the report of the Truth and Reconciliation Commission during the first week of June. The mandate of the commission, established as part of the comprehensive settlement of residential school legal claims, was to document the stories of survivors, their families and communities, research and write the history of the residential school system and make recommendations. The commission took six years and spent $60-million to do its work. Along the way it gathered 6,200 statements.

In its report, released June 2, the commission made 94 recommendations, or “Calls to Action.” They are almost entirely directed at governments and other public institutions. This is hardly surprising: Indian residential schools were supported and funded as instruments of public policy, and the legacy of the harm done by governments is the responsibility of governments.

The recommendations are ambitious. The commission calls on government to rewrite the citizenship oath to include a reference to aboriginal treaties, require law schools to make courses in First Nations law mandatory, eliminate the over-representation of aboriginal people in our jails, issue a Royal Proclamation and Covenant of Reconciliation and much, much more.

Once the commission’s report was released, it did not take long for the focus to shift to government. Would governments accept the report? Promise to implement its recommendations? And, of course, why isn’t government acting?

I thought about this as I stood in the quiet art gallery and looked at the two school desks.

Of course, we should worry that this file may already be making its way into the “too hard” pile on the desks of government officials. All too often, commission reports gather dust rather than inspire action.

But I worry, too, that the focus on the institutional recommendations, and the government response to them, may miss the main point.

In an odd way, it’s easy to ask government to solve this problem for us. It allows us to blame the government when government fails to act. But more invidiously, it allows us as individuals to wash our hands of the problem and off our personal responsibility to government or some other public institution – in this case, our responsibility as citizens and humans to understand the truth of the residential school experience and to work through what reconciliation means, not just for someone else, but for ourselves.

The legacy of the residential school system is complex. It’s not a history in which all of the hats are black or white, and we should not be afraid to acknowledge that.

But it is beyond doubt – and this is the power of all those thousands of statements – that for too many of our fellow citizens, childhood was a story of hardship, fear and neglect when it should have been one of love, care and nurturing. This is not just a policy question for government. It is a story about human lives, each as worthy of honour, dignity and respect as our own.

Public institutions have work do to, but we will not come to terms as a country with the legacy of Indian residential schools until we do so as individuals. We have to find a way to stare straight at this reality rather than turn away from it.

Mr. Assu’s school desks are small. Small like the innocent young boys and girls who sat at them. They silently dare us to respond – more powerfully, perhaps, than the report of any commission.

It occurs to me that I should post on this (somewhat neglected) blog a couple of other pieces I have written over the past few months which I have had the good fortune of seeing published elsewhere. So in that spirit, here is a piece the Globe and Mail published on June 14, 2015, as the City of Vancouver was deciding whether or not to regulate potshops. In the months since they passed their bylaw it's become even more apparent that the main problem here is a federal government (now of course in an election campaign) that simply turns away from the obvious need to take a completely new, health-protection based approach to marijuana. But in the absence of a sane federal legislative regime, and given the proliferation of marijuana dispensaries, I still think the City made the right decision when it decided to impose its own regulations. Some of the details in the City's bylaw may be debatable, but this article dealt with the basic question of principle posed at the end of its first paragraph.

As the City of Vancouver consults with the public on its proposal to license marijuana retailers, I expect many people are not asking themselves about the details – for example, should pot shops be allowed at transit malls – but about the bigger question: What is the city doing regulating an illegal activity?

Yes, storefront marijuana sales are still against the law. Marijuana can be distributed legally for medical purposes, but several conditions must be met. Among them, the patient needs a doctor’s prescription, and the purchase must be from one of a very small number of producers licensed by Health Canada.

If these and other conditions are not satisfied, then possession and sale of cannabis is a criminal offence, and possession of as few as six marijuana plants carries the risk of prosecution and up to 14 years in prison.

Or not. Because in Vancouver, the police have made it clear they will not enforce medical marijuana laws against store operators except when there are other public order considerations.

The result is a proliferation of medical marijuana stores. Almost 100 of them in Vancouver, and the number is growing.

The law is in a state of flux. More precisely, the courts have been issuing decisions that overturn parts of the federal regulatory framework. Just last week, the Supreme Court of Canada ruled there was no rational basis for the Health Canada regulation that permits medical marijuana to be sold for smoking, but not for eating.

But please do not blame the courts for this confusion. Blame, rather, a federal government whose approach to this issue is driven by politics, not evidence or policy.

Some may still believe the best response to the reality that is marijuana in our society is to criminalize it, but it is a shrinking minority. A large and growing consensus of Canadians understands that cannabis prohibition has failed. It has not reduced use, and it has instead encouraged the spread of organized crime gangs whose members fight over market share.

Evidence is growing of the health effects of marijuana use, evidence of the risk of harm its use presents in some circumstances, particularly to the young. And there is considerable evidence of the benefits it offers in other circumstances, particularly to chronic-pain sufferers.

Unfortunately, federal cabinet ministers choose to call for prosecution, rather than commit themselves to do the desperately needed work of developing a regulatory framework informed by good health science.

When the law as written fails, as it clearly has here, when it lacks all moral authority, and creates more harm than benefit, rational policy makers should change the law.

What is needed is a clean slate, where all levels of government work together to plan a post-prohibition regime, where the focus is on developing effective public-health regulation, with clear and sensible rules, and funding from taxation to support research and education.

In an election year, no one should expect a change in policy on the part of the federal government. But that does not do much to help the City of Vancouver as it watches the number of pot shops grow every day.

Some wonder why the police are not prosecuting. Attempts to enforce laws that do not command public respect are more apt to bring the administration of justice into disrepute. On this issue, Vancouver’s police department is reading public sentiment correctly.

As a lawyer, I am troubled by the idea that the city would choose to regulate an activity – the retail sale of marijuana – that is unlawful. The city’s job, one might think, should be to enforce federal law, no matter how wrong it appears, rather than legislate to undermine it. It is always unsettling when our politicians appear to be at cross-purposes.

But the better course is for Vancouver to do something, rather than stand by and allow a regulatory vacuum to grow.

It is the business of city governments to enact by-laws to protect our safety, create livable neighbourhoods, limit hours and locations of business, and restrict unhealthy activities such as public smoking.

There is a need for good city-made rules to regulate pot shops, too. Not for the purpose of thumbing our noses at an out-of-touch federal government or usurping its authority, but for the simpler, yet profoundly important purpose of doing the best we can to protect the public until Ottawa comes to its senses.

The Globe and Mail today published this piece of mine on the Lobbyist Registration Act - they wrote the headline, which pretty well sums it up.

As British Columbia’s attorney-general, I introduced the province’s first lobbying legislation in 2001. Its basic objective was transparency – to shine a light on the interactions between government and lobbyists. Underlying the bill was the idea that while lobbying is a perfectly legitimate fact of political life, the public has a right to know who is trying to influence the government.

It’s one thing to express a public-policy objective and another to make it work. We’ve now had more than a decade of experience with the Lobbyists Registration Act and its administration. In short, the objective remains sound, but it is increasingly being undermined by a misdirected focus on trivial violations of filing requirements.

The original framework was deliberately simple: Establish a registry; require those who are paid to lobby government to register; appoint an official, called a registrar, with the power to verify the information provided; make the register accessible to the public.

The idea was to give the public a window into how the government works, not to impose a highly technical, onerous regime – to regulate lobbying, not lobbyists.

This was the spirit and intent of the law. In hindsight, that objective may have been naive. But not, perhaps, in the way that one would expect.

The act’s original framework was implemented. There is a register, it is publicly available and there is widespread compliance. There are certainly instances where significant lapses occur, but they are isolated and rare, not systemic or pervasive.

However, the temptation of creating an elaborate bureaucracy of rule enforcement proved irresistible to later governments, and so in 2009 the act was amended to introduce a full-scale regulatory regime, with powers of investigation, hearings, sanctions, penalties and more.

For a time, the registrar focused on educating to improve compliance, rather than punishing the miscreants. Alas, this has now changed, with the result that the registrar now regularly imposes penalties for infractions in the thousands of dollars. What kinds of infractions? Late filings; incorrect dates in filings; incorrect descriptions of the details of the lobbying activities; registering too soon.

Most of these errors are the moral equivalent of returning an overdue library book. It’s a bad thing, but it’s not that bad.

This insistence on enforcing clerical compliance may have reached a new high point this month when the registrar published a decision in which the original issue was a late filing of a registration in circumstances where no actual lobbying ever occurred. What makes the case look like a textbook example of regulatory overkill is the fact that this was a formal reconsideration of the findings of a previous investigation, which itself flowed from a previous investigation report, which flowed from an earlier reconsideration. That’s a lot of legal process for a filing error.

Enforcing precise compliance with registration requirements is particularly aggravating because the online registration system is inflexible, and remarkably insensitive to the often quite unstructured practical reality of lobbying. You might start by planning to speak directly to a minister, and then decide on second thought that you should begin by raising the matter with the deputy minister, and then what actually occurs is that you see the minister’s political assistant at a social event and decide to start the discussion right then.

That is how the actual world of lobbying works. It evolves as it proceeds. But every minor change of plan requires a new filing, and every filing mistake is a potential occasion for an investigation and a fine.

There are larger issues at play here. The evolution of the administration of this act is a good example of what often happens when a policy objective is legislated. The focus changes from achieving the policy objective to the technical business of rule compliance.

For example, speed limits are enacted because driving too fast is unsafe. But once speed limits are enacted, it is not so important whether you are driving unsafely. What matters more is whether you are driving 51 kilometres an hour in a 50-km/h zone.

Of course, when rules are broken, there is an expectation of some consequence. Even library fines are supposed to be paid. But law enforcement always includes an element of discretion, and excessive rule enforcement for its own sake may undermine, rather than reinforce, the public-policy objective of the law. In this case, too much of the wrong kind of punishment may serve to drive lobbying underground, which is exactly the opposite of the law’s intent.

The irony – the failure of foresight, if you will – is that in introducing the first Lobbyists Registration Act all those years ago, my concern was that the act might fail because lobbyists would somehow find a way to ignore it. Instead, they are now being punished for their errors in trying to comply with it.